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PROCTOR | July 2017
b. Liberty to apply cannot be used to alter
the substance of an order already made.
c. What can be done under a reservation of
liberty to apply depends on what needs to
be done, in the particular case, to work out
the particular orders that have been made.
d. If an order is one the working out of
which of its nature involves deciding
complex questions, or questions that
were not specifically raised at the time
the order was made, those questions
can be raised and decided in the original
suit pursuant to liberty to apply.
Interlocutory context
Until final orders have been made, the rules of
court permit a party to bring an interlocutory
application for relief, including the seeking
of an order which varies a previous order
(subject to satisfying the requirements of the
rules relating to such applications).
For this reason, it is usually not necessary to
include an order that the parties have liberty
to apply as part of an interlocutory order. That
is because a party can bring an application
for interlocutory relief at any time (subject to
compliance with the rules of court) and does
not need leave to do so.
If liberty to apply is granted as part of an
interlocutory order then, subject to its terms,
it cannot be relied upon to seek an order
which cannot be characterised as one which
is needed in order to work out or implement
existing orders.
For example, in Northbuild Construction Pty Ltd
v Discovery Beach Project Pty Ltd (No.3) [2010]
1 Qd R 244, a freezing order was made (in the
presence of both parties) which included ‘liberty
to apply’. The party which was the subject of
the existing freezing order relied upon the liberty
to apply to seek an order permitting it to use
certain proceeds of sale of its properties to
pay its reasonable legal expenses. The
application failed. At [41] of the decision,
White J (as her Honour then was) stated that:
“... This application is well beyond the
usual express (or implied) leave to apply
which is a feature of interlocutory orders...
This application clearly does not concern
the ‘working out’ of the order even on the
broadest understanding of that expression.”
Kylie Downes QC is a Brisbane barrister and member
of the Proctor editorial committee.
Kylie Downes QC explains when to ask for ‘liberty to apply’ and, in turn,
the circumstances when an application can be made pursuant to that liberty.
Notes
1 Perpetual Trustees Queensland Ltd v Thompson
(2012) 2 Qd R 266 at [29].
2 Comcare v Grimes (1994) 50 FCR 60 at 62.
3 Abigroup Ltd v Abignano (1992) 39 FCR 74 at 88.
4 [1992]2QdR593at598.
5 (2012)2QdR266at[29].
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